[Ilikeanswers]

Good Day!

I came to the US in 2003 on an F1 visa. In 2008, I left for 5 weeks and returned on a new F1 visa for my masters. On October 1st 2009, I changed status from F1 to H1B. The company I work for did not take FICA taxes out of my paycheck until I changed status to H1B (10/1).

Here are my questions:
Since I kept within the requirements of my F1 visa and I did not make an attempt to attain permanent residency, then although I'm over the 5year exemption, I still qualify as a NR for the majority of the year?

H&R block premium office states that I qualify to file as a dual status alien and should file both the 1040NR and the 1040. What is your opinion given my situation?

Am I able to file as a resident for the year? Since my W2 separates wages that were elligible for FICA taxes, won't that cover the portion where my I was NR?

As you can see I am quite confused as to what to do. Everyone in a similar case that I have spoken to said they filed as a resident.

[AtlantaTaxExpert]

Technically, your exemption from the Substantial Presence Test ended on 31 December 2007. You could have retained your NRA status in 2008 by "showing a closer connection" to your home country when you submitted Form 8843 in 2007 and 2008.

For 2009, however, any argument for the "closer connection" was undercut when you applied for the H-1B visa. Hence, for 2009, you were a resident alien and should have been paying FICA taxes.

This being the case, you have the legal obligation to so inform your employer of these facts, then allow them to take whatever corrective action they deem appropriate regaring the collection of unpaid FICA (Social Security and Medicare) taxes. Make this notification in writing (email is good for this), then see what happens.

As for your 2009 tax return, you should file as a resident alien, filing Form 1040, 1040A or 1040EZ. Dual-status is NOT appropriate.